Google has lost its appeal to gain the trademark for "Gmail" across the …

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Google has once again been thwarted in its bid to trademark "Gmail" in the European Union because of a similar trademark in Germany. The Office for Harmonization in the Internal Market (OHIM) has just published a ruling made last month, dismissing Google's appeal of the original decision against the company. Instead, the trademark for "G-mail" remains securely in the hands of Daniel Giersch, who has run an e-mail service with the name since 2000.

The case started back in 2004 when Google first launched Gmail and applied for trademarks worldwide. In 2005, Giersch filed an opposition to Google's application on the grounds that the trademarks were nearly identical, as were the services they represented. Giersch won his case last year, due to the visual, verbal, and aural similarity, not to mention that Giersch's mark had already been protected in Germany.

Google did not take the decision lying down, appealing it immediately. The company argued that numerous trademarks containing "mail" in addition to a single letter coexist in the Community Trademark Register, International Trademark Register, and German Trademark Register. The company also pointed out that the color differences—Google's logo uses the company's traditional red, blue, yellow, and green, with Giersch's is yellow and black—would reduce any confusion between the two services. Giersch's trademark also contains a slogan that reads "und die Post geht richtig ab" (roughly translated to mean that the mail is taking off), which Google believes further differentiates the two.

OHIM disagreed, maintaining that there is a likelihood for confusion between the two services. "[T]he Board considers that the common element 'GMAIL', with or without a hyphen, gives the signs an overall visual, phonetic and conceptual similarity which is such that the relevant public in Germany confronted with the marks at issue for the contested services that are considered identical to the opponent's services will be misled into thinking that the marks indicate a shared commercial origin," OHIM said in its ruling.

Google can appeal this decision, although Giersch's continued legal victories make the likelihood of success very slim at this point. Even the German courts are tired of Google, and have banned the company from taking up the Gmail/G-mail issue outside of OHIM or an official settlement (which Giersch is not interested in). With Gmail out of reach, Google is forced to use "Google Mail" across Europe instead (although all Google Mail accounts still come with an @gmail.com address).

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Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui